A companion piece to an article they published last year in the New England Journal of Medicine, this new article explores the legal arguments surrounding copyright enforcement on cognitive testing like the mini-mental status exam. “The New England Journal of Medicine article was an appeal to doctors and researchers to set cultural norms. If our last article was a call to action for medicine,” says Professor Feldman, “this is an appeal to the courts to cut off inappropriate behavior.”

"Copyright at the Bedside: Should We Stop the Spread?" examines a crisis in medical mental testing. After decades of widespread use in the field, the authors of the key test for mental status transferred their copyright to a monetization entity that has aggressively asserted copyright against doctors and researchers. (Such tests have questions like, "who is the president of the United States" and "count backwards form 100 by 7s.") In the wake of these assertion tactics, the examination that has been the bedrock of researching, testing, and following patients has disappeared from the latest editions of medical textbooks and from guides and websites everywhere. Other authors have followed suit, and the phenomenon of asserting copyright in medical tests is spreading rapidly in the health care field.

Last year’s piece in the New England Journal of Medicine encouraged the development of a cultural norm in which medical researchers ensure the continued availability of the tests they develop. In this new legal companion piece, the authors argue that courts should reject attempts to copyright medical mental testing because 1) these tests are methods, 2) methods belong in patent law, and 3) this assertion campaign is just a back-door method to try to get around the fact that the tests would not be patentable.

Professor Robin Feldman's work is widely regarded as some of the most influential scholarship in the field of patent law. She offered significant commentary to multiple media outlets during the Apple v. Samsung patent lawsuit and its recent groundbreaking decision. Her latest book, Rethinking Patent Law, was published by Harvard University Press in 2012 and explains patent bargaining. Professor Feldman's 2012 article on patent mass aggregators has received rave reviews. ("The Giants Among Us," 2012 Stanford Technology Law Review 1, with Tom Ewing.) One reviewer called it "one of the most important contributions to the debate about NPEs, patent aggregators and the state of the US patent marketplace," another called it "an absolutely remarkable study," and another called it "superb." Other articles by Professor Feldman have appeared in prestigious journals at Georgetown, Stanford, Texas, USC, UCLA and Virginia law schools, as well as in The New England Journal of Medicine.

The European drafting process remains far from complete, and actual adoption of the resulting proposals will surely be a gradual thing. Throughout, however, these developments will have a significant UC Hastings component, and UC Hastings students will have the benefit of information about these significant international trends.

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